In re J.B.

Filed 12/30/08 In re J.B. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Diana DiMaggio and Bradley O. Snell, Temporary Judges. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant B.B.

Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant J.B., Sr.

Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

Janette Freeman Cochran, under appointment by the Court of Appeal, for Minors.

B.B. (Mother) and J.B., Sr., (Father) appeal after the termination of their parental rights to their two sons, J.Jr. and J., pursuant to Welfare and Institutions Code section 366.26.^[1], ^[2]

Mother and Father raise the following issues on appeal.^[3]

1. Mothers section 388 petition should have been granted.

2. If this court reverses the finding on the section 388 petition, it must vacate the section 366.26 order terminating parental rights.

3. The juvenile court erred by failing to find the beneficial parental relationship exception of section 366.26, subdivision (c)(1)(B)(i) applied.

4. The juvenile court erred by failing to find the sibling exception of section 366.26, subdivision (c)(1)(B)(v) applied.

5. Improper Indian Child and Welfare Act (ICWA) inquiry and notice require reversal of the termination of parental rights.

6. The juvenile court erred by refusing to grant Fathers request for a continuance of the section 366.26 hearing.

We find no error. Hence, we will affirm.

I

PROCEDURAL AND FACTUAL BACKGROUND

On March 7, 2006, the Riverside County Department of Public Social Services (the Department) detained J.Jr., who was eight years old, and his brother J., who was six years old. According to the section 300 petition filed by the Department on March 9, it was alleged pursuant to subdivision (b) of section 300 that there was willful and negligent failure to supervise or protect the children; a failure to provide adequate food, clothing, shelter or medical treatment; and an inability of the parents to provide regular care of the children due to mental illness, developmental disability, or substance abuse. It was also alleged under section 300, subdivision (g) that Fathers whereabouts were unknown.

The facts supporting the allegations in the petition were that Mother had six children. Her four older children had all been part of dependency proceedings and had been placed by the Department with other relatives. The Department had numerous referrals to the home for all of Mothers children, including J. and J.Jr., starting in 1992.

On March 7, 2006, the Department went to Mothers home. Father was no longer living in the home. J. was not enrolled in school because he did not have the proper immunizations. Mother was found to be under the influence of a controlled substance and was arrested. Drug paraphernalia was found in the room where Mother, J.Jr., and J. all slept. The kitchen was infested with cockroaches, the house smelled like urine, and both boys had lice. Mother and Father had extensive criminal histories, mostly pertaining to drug abuse and child neglect. Father was on parole. Father and Mother had gotten into a fight in front of J., and Father had pushed Mother.

Neither Mother (who had been released from custody) nor Father was present at the detention hearing held on March 10, 2006. The juvenile court found that a prima facie case for detention of both J. and J.Jr. outside the home had been made. The juvenile court also ordered frequent and liberal visitation between Mother, Father, and the boys.

It was alleged in the detention report that ICWA did not apply based on Mothers denial of Indian ancestry. The juvenile court concluded that ICWA did not apply.

In a jurisdictional report filed on April 4, 2006, the Department asked that the juvenile court find the allegations in the section 300 petition true. It was recommended that Mother be denied reunification services pursuant to section 361.5, subdivision (b)(10), and that Father receive reunification services. The children remained in a shelter home.

J.Jr. and J. had been interviewed by the Department. They both denied that they had seen drugs in the house. They both stated that the house was infested with cockroaches, and one of the toilets was broken. They were not afraid of their parents but had seen them fight. J. had returned to school.

Mother was also interviewed and claimed the paraphernalia found in the home did not belong to her. She admitted smoking methamphetamine with Father two days prior to the boys being detained. She also admitted to smoking marijuana once every other day. She claimed that she did not reunify with her other children during previous cases with the Department because she did not want to move them from their schools. The violence between her and Father was due to his new girlfriend. Fathers girlfriend had smashed a window at Mothers house. Mother had not worked in 20 years.

On March 29, 2006, Father was located and interviewed. He was aware of Mothers drug use. He denied that he ever hit Mother and claimed they were fighting over her drug use. He was not currently employed. He indicated that J.Jr. and J. could live with him at his girlfriends house.

Ad.N., an older half brother of J.Jr. and J., had been evaluated and was found suitable for placement. Mother was on a waiting list for a substance abuse program. Mother and Father were both interested in reunification. It was recommended that Mother not receive services because of her failure to reunify with her four other children. According to the drug test conducted on Mother on March 7, 2006, the day the boys were detained, amphetamines and methamphetamines were detected in her system.

Both Father and Mother completed JV-130 forms indicating that they had no known Indian ancestry. However, as will be set forth in more detail, post, the Department served notice on the Bureau of Indian Affairs (BIA) after speaking with the paternal grandmother.

At the jurisdictional hearing held on April 6, 2006, Mother and Father, who were both present, denied the allegations in the petition, and a contested hearing was set.

Prior to the contested hearing, the Department filed an addendum report. J.Jr. was not doing well in school and was getting in fights. He was going to have to repeat the second grade. Father had sporadically attended visits with J. and J.Jr.; Mother had regularly attended visits. Father and Mother had failed to submit to random drug tests.

On May 31, 2006, the petition was amended to delete the facts in the petition that Mother had been arrested for being under the influence on March 7, 2006, and that Father and Mother had previously failed to benefit from services in the past. Otherwise, the allegations in the petition remained the same.

At the contested hearing, Mother admitted the allegations in the amended petition. The allegations pursuant to section 300, subdivision (b) were found true as to Mother and Father. Reunification services were to be provided to Father and Mother pursuant to section 361.5, subdivision (a)(1). Father and Mother were to attend drug treatment and submit to random drug testing. The juvenile court found that notice had been given as required by ICWA.

A six-month status review report was filed on November 7, 2006. The Department recommended six additional months of reunification services. Neither parent was employed. J.Jr. and J. were living with their half brother, Ad.N. Mother and Father had failed to attend parenting classes. Mother had started a substance abuse program. Mother had missed six random drug tests. Father had been expelled from a substance abuse program and missed two drug tests; he had one negative drug test. Mother attended all visitation with J.Jr. and J. Father missed some visitation.

At the six-month review hearing held on November 29, 2006, a permanency plan of returning J.Jr. and J. to Mother and Father was adopted. The juvenile court continued reunification services for six months. ICWA did not apply.

On May 18, 2007, the Department filed a status review report recommending that reunification services for Mother and Father be terminated, that a selection and implementation hearing be set, and that a permanent plan of adoption be ordered.

On November 26, 2006, Mother was arrested for possession of a controlled substance, and since this violated her probation, she was incarcerated until January 20, 2007. She had also failed to appear for a court date, and a warrant for her arrest had been issued. Father had not been in contact with the Department. J.Jr. and J. had been moved into a foster home because Ad.N. had been deployed by the military to Florida.

Mother had had a positive drug test on February 14, 2007, and had failed to attend substance abuse counseling since the positive test. She had missed numerous tests. Father had completed no services. After Mother was released from incarceration, she only sporadically visited J.Jr. and J. while they were at Ad.N.s house. Father had made no visits. The current foster parents were willing to adopt J.Jr. and J.

A contested status review hearing was held on June 27, 2007. Father was not present but was represented by counsel. Mother presented evidence that she had entered a rehabilitation facility and was to remain for 60 days. Reunification services were terminated, and the section 366.26 hearing was scheduled. Although Mother and Father were notified of their right to file writ petitions pursuant to California Rules of Court, rule 8.450, the record does not show a writ petition was filed by either party.

The Department filed a section 366.26 report on October 4, 2007. J.Jr. and J. had been in the current foster parents care since April 27, 2007, and had developed a strong bond with the adoptive parents. Mother had monthly visits with J.Jr. and J. that were appropriate. Father had attended no visits.

Mother had completed an inpatient substance abuse treatment program. She had also completed a parenting class and anger management. The Department recommended adoption by the current foster parents. Mother was ordered to take a hair follicle drug test.

Prior to the section 366.26 hearing, the Department presented letters and reports from the foster parents that the children were doing well and that they wanted to adopt them.

On February 25, 2008, Mother filed a section 388 petition, requesting that reunification services be reinstated, as will be set forth in detail, post. The Department filed an addendum report opposing Mothers section 388 petition. The section 388 motion was heard and denied.

Father and Mother were both present with counsel at the section 366.26 hearing held on April 23, 2008. Counsel on behalf of J.Jr. and J. appeared and agreed with the Departments recommendation of termination of parental rights and adoption.

The juvenile court took into account all of the reports and proceedings in this matter. It also heard argument from counsel. The juvenile court denied that the beneficial parental relationship (section 366.26, subd. (c)(1)(B)(i)) or the sibling exception (section 366.26, subd. (c)(1)(B)(v)) applied. The juvenile court found that J.Jr. and J. were adoptable and that the parental rights of Mother and Father should be terminated. The children were freed for adoption.

Mother and Father appealed.

II

DENIAL OF SECTION 388 PETITION

Mother contends that the juvenile court erred by denying her section 388 petition.^[4] A. Additional Factual Background

On February 25, 2008, through counsel, Mother filed a section 388 petition requesting that reunification services be reinstated. Mother had completed a 60-day substance abuse program, a parenting class, anger management, and a relapse class and therefore, had substantially complied with the case plan. Further, she had attended all visitation and was appropriately interacting with J.Jr. and J.

The Department filed opposition to the section 388 petition in the form of an addendum report. According to the addendum report, Mother had failed to submit to a hair follicle drug test as ordered by the court. After the last visit between Mother and the boys, the boys advised the Department that they no longer wanted to have visits with her. They both told the Department that their Mother had had a chance to get them back but had failed. Further, Mother was unemployed.

At the hearing on the section 388 motion, Mother presented stipulated testimony that on the day she was asked to take the hair follicle test, she told the Department that she could not find her identification card and would go home to get it. She was given no other alternative for establishing identification. Mother was attempting to obtain a new identification card so she could take the hair follicle test. No other evidence was presented.

Mother argued that the section 388 petition should be granted because Mother had completed her case plan by attending substance abuse programs and parenting classes. Mother had maintained visitation with the boys and had a strong bond with them. Mother had satisfied the two prongs of section 388 by showing a change in circumstance in that she had completed her case plan and that the children would benefit from a continuing relationship with her.

Counsel for J.Jr. and J. opposed the section 388 petition. Mother had failed to submit to the hair follicle test, and the boys had stated they no longer wanted to visit with Mother. Counsel on behalf of the Department argued that Mother had failed to contact the Department regarding losing her identification. Mother argued in rebuttal that she had completed a substance abuse program and was willing to take the drug test and that she had shown changed circumstances. Further, the negative statements by J.Jr. and J. were to be expected, since they had been taken from Mother.

The juvenile court noted that Mother had waited almost 12 months to begin to participate in services. The recent completions were commendable, but the juvenile court was concerned Mother had not taken the court ordered hair follicle test. The court found there were no changed circumstances because the Mother was notorious for not following up on court orders. Furthermore, as to the second prong, even if there was a change in circumstances, the court held that these young boys are in such a much better place than they were before, that the young boys want adoption and appreciate the stability of the lifestyle. [] They appreciate what they have now and what they had before and have referenced that to the social worker that . . . the parents had their chance and did not perform and so the Court would never find that it was in the best interest of these boys at this late stage, two years later, to reopen services for reunification. The motion was denied.

B. Analysis

The juvenile court may modify an order if a petitioning party shows, by a preponderance of the evidence, changed circumstances or new evidence and that modification would promote the dependent childs best interests. ( 388; In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) We review the juvenile courts order for an abuse of discretion. (Id. at p. 1704.) Hence, we will not disturb [a] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)

Here, Mother did not show changed circumstances that warranted a change in the order terminating reunification services. Mother had suffered from serious substance abuse beginning at least in 1994, when she was first arrested for being under the influence. Her recent completion of a parenting program and participation in a 60-day substance abuse treatment, without any indication that she had submitted to drug testing since reunification services were terminated, did not establish changed circumstances. Mother waited 12 months to enter a drug rehabilitation program. She was arrested during the pendency of this dependency action for being under the influence of a controlled substance. She also had a positive drug test. She had failed to take the hair follicle test, providing an implausible excuse that she could not find her identification. Even if this were true, she never contacted the Department to find out a way that she could take the test. The juvenile court did not err by finding her participation in services at this late stage not very compelling, as it was never shown she had actually reformed her behavior. Mother did not show changed circumstances as to her substance abuse warranting that the previous court order be changed.

Mother claims in the reply brief that she was sober for over one year prior to the hearing on her section 388 petition. However, since being released from the drug program on August 13, 2007, Mother had not been tested for drugs. There is no evidence before this court that she in fact remained sober.

Further, it was not shown by a preponderance of the evidence that the best interests of J. and J.Jr. would be promoted by the continuation of reunification services. In considering whether a childs best interests would be served by modifying a previous order, the juvenile court must evaluate several factors, including the seriousness of the problem that led to the dependency and the continuation of the problem. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1261, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 5; In re Kimberly F. (1997)56 Cal.App.4th 519, 532.) Substance abuse is generally considered a more serious problem and, therefore, is less likely to be satisfactorily ameliorated in the brief time between termination of services and the section 366.26 hearing. (Kimberly F., at p. 531, fn. 9.) The juvenile court should also consider the bond between the parents and the child against the bond that the child has forged with the prospective adoptive parents. (Eileen A., at p. 1261.)

As noted, ante, Mother suffered from a serious substance abuse problem. Her continued substance abuse, with no indication that she was fully recovered since she had failed to take a drug test, certainly weighed against continuing reunification services as it was not in the childrens best interests.

Further, according to the Department, the quality of the visits between Mother and J.Jr. and J. had deteriorated. In fact, the boys no longer wanted to visit with her. Also, after she had been incarcerated and the boys were living with Ad.N., Mother only sporadically visited the boys. On the other hand, the boys were thriving in the foster parents care. They had joined Boy Scouts, were playing sports, were excelling in school, and were happy.

Further, Mother and Father were not employed. There was no showing as to how Mother intended to take care of the boys should she be granted a continuation of reunification services, or even if she retained custody of the boys.

Mother argues, relying on In re Monica C. (1994) 31 Cal.App.4th 296, 309-310, that family preservation remains the primary goal of the juvenile court dependency system and must be considered carefully in creating a permanent plan for a child. However, because Mothers reunification services had been terminated, a presumption existed that continued care in the prospective adoptive home was in the childrens best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 [after reunification services are terminated, the focus shifts to the childs need for permanency]; In re Angel B. (2002) 97 Cal.App.4th 454, 464 [presumption applies with greater strength when the permanent plan is adoption].) Mother failed to rebut this presumption.

Based on the foregoing, we conclude the trial court did not abuse its discretion by denying Mothers section 388 petition as there was no showing of changed circumstances that would require a change of the courts previous orders or that such change would be in the best interests of J.Jr. and J.

Since we conclude that the trial court did not error by denying the section 388 petition, we need not address Mothers second claim regarding the reversal of the termination of parental rights if we reverse the finding on the section 388 petition.

III

BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION

OF SECTION 366.26, SUBDIVISION (c)(1)(B)(i)

Mother, joined by Father, claims that the juvenile court erred by finding that the beneficial parental relationship exception of section 366.26, subdivision (c)(1)(B)(i), did not apply.

A. Additional Factual Background

At the section 366.26 hearing, Mothers counsel requested that the trial court apply the exception under section 366.26, subdivision (c)(1)(B)(i) that mother had maintained consistent and regular visitation with the boys. Mother asked for a lesser plan of guardianship. Fathers counsel presented stipulated testimony that Father was trying to deal with his past and was working hard for the boys future. Father had been attending church and had been sober for over two months.

The Department argued in opposition to the exception that Father had no relationship with the boys. The boys indicated they wanted no further visitation with Mother.

B. Analysis

In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. ( 366.26, subds. (b)(1), (c)(1).) This rule, however, is subject to seven statutory exceptions. ( 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(c)(1)(B)(vi).) The only one relevant here is the beneficial parental relationship exception. ( 366.26, subd. (c)(1)(B)(i).) It applies when termination would be detrimental to the child because [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Ibid.)

We have interpreted the phrase benefit from continuing the relationship to refer to a parent-child relationship that promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. [Citations.] (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

[T]he parent must show more than frequent and loving contact or pleasant visits. [Citation.] Interaction between natural parent and child will always confer some incidental benefit to the child . . . . [Citation.] [Citation.] The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.] (In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In other words, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.] (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)

We must affirm a trial courts rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.] (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Because the parents had the burden of proof, we must affirm unless there was indisputable evidence [in their favor] -‑ evidence no reasonable trier of fact could have rejected . . . . (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)

In the instant case, Mother initially was doing very well with visitation. She acted appropriately with the children, and they were excited to see her. However, on November 26, 2006, Mother was arrested and was incarcerated until January 20, 2007. She had no visits during this time. Certainly, Mother was incapable of visiting during this time; however, the reason she was incarcerated was solely due to her own actions. Once she was released, she only visited with the boys sporadically.

As to Father, he made only a few visits with the boys throughout the dependency proceedings. Father cannot show that he maintained continued contact with J.Jr. and J.

Further, Mother cannot show that J.Jr. and J. would benefit from continuing the relationship. As stated above, the parent must show more than frequent and loving contact or pleasant visits. . . .  The parent must show he or she occupies a parental role in the childs life, resulting in a significant, positive, emotional attachment from child to parent. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 953-954.)

Although initial visits between Mother and J.Jr. and J. were friendly, Mother never showed she occupied a parental role. Although Mother had raised the boys, she was consistently investigated by the Department. The home was in disarray and J. was not even enrolled in school. Mother was consistently arrested and incarcerated for her repeated drug use. The evidence was insufficient to show that Mother stood in parental role to the children. Father made absolutely no showing that he had a parental role with the boys.

Once J.Jr. and J. were in the stable environment of the foster home, the children realized the mistakes that Mother had made. They no longer wanted any contact with her. The juvenile court thus properly found that the beneficial parental relationship exception to termination of Mothers parental rights did not apply.

IV

SIBLING EXCEPTION OF SECTION 366.26, SUBDIVISION (c)(1)(B)(v)

Mother, presumably joined by Father, contend that the juvenile court erred by refusing to apply the sibling exception pursuant to section 366.26, subdivision (c)(1)(B)(v).

A. Additional Factual Background

J.Jr. and J. were placed with Ad.N., their half brother, on September 15, 2006. However, he was later militarily deployed to Florida for approximately one year. The boys half sister, Am.N., was assessed for placement. She had four children (even though she was only 23 years old) and no steady employment. She let Mother take care of her children despite knowing Mother might be under the influence. She was not approved, and the boys were put in a foster home.

At the section 366.26 hearing, Father argued that J.Jr. and J. had a strong bond with Ad.N. and Am.N. Counsel for both Mother and Father asked that the sibling exception be considered and that their rights not be terminated.

Counsel for J.Jr. and J. argued that there was no sibling relationship due to the differences in their ages. Ad.N. had not visited despite the offer from the foster father. J.Jr. and J. did not care if they saw their half siblings. The trial court denied that the sibling exception had been shown by the evidence.

B. Analysis

Section 366.26, subdivision (c)(1)(B)(v) provides an exception to the termination of parental rights if the court finds a compelling reason for determining that termination would be detrimental to the child due to a substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. ( 366.26, subd. (c)(1)(B)(v).)

In evaluating the applicability of the sibling relationship exception, the juvenile court determines whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. [Citation.] If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the childs best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.) [T]he concern is the best interests of the child being considered for adoption, not the interests of that childs siblings. (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.)

Reflecting the Legislatures preference for adoption when possible, the sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a compelling reason for concluding that the termination of parental rights would be detrimental to the child due to substantial interference with a sibling relationship. [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.] (In re Celine R. (2003) 31 Cal.4th 45, 61.) We review the courts finding on this issue for substantial evidence. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.)

Here, the record is not entirely clear as to how much time the half siblings spent with J.Jr. and J. while they were growing up. They were both considerably older than J.Jr. and J. Mothers rights to these older children had been terminated in 1997. Although J.Jr. and J. lived with Ad.N. during part of the pending dependency action, Ad.N. was deployed by the military and gone for one year. When he returned, he had little or no contact with the boys despite being offered visitation with them by the foster father. Am.N. expressed interest in taking the boys, but she already had four children.

The most telling evidence here, though, was presented by minors counsel that J.Jr. and J. did not have a bond with their siblings and that they wanted to be adopted. Moreover, neither half sibling lived with Mother or Father. There is absolutely no evidence in the record that supports that if the parental rights were not terminated, the sibling relationship would continue. Finally, the adoptive parents were open to visits between the siblings.

For the foregoing reasons, we hold that there is substantial evidence in the record to support the courts conclusion that the sibling relationship exception to adoption does not apply.

V

ICWA NOTICE

Father, presumably joined by Mother, claims that inadequate ICWA notice was given by the Department and reversal of the termination of parental rights is required.

A. Additional Background

On April 6, 2006, Father and Mother both filed JV-130 forms stating that they had no known Indian ancestry. However, in an addendum report filed by the Department on May 26, 2006, the Department noted that it had been informed on March 29, 2006, that Father claimed he might have Indian ancestry and referred the Department to his mother, P.H. P. advised the Department that while she was growing up, she heard that her fathers side of the family had Indian heritage. Her family was from Arkansas, but she had no knowledge of the tribe name. P. indicated that it was taboo to discuss the heritage. P. stated that her paternal great-grandfather was embarrassed, and she was never told of a link to any tribe.

On May 18, 2006, a JV-135 form bearing the names of Mother, Father, J.Jr., and J. and their addresses was sent to the BIA. The form listed P.s full name and current address, but no other family member names. She was listed as the maternal grandmother. The tribe was listed as unknown because MGGM did not discuss tribe due to embarrassment and prejudice. It also stated that maternal grandmothers family was from Arkansas. There was a Track and Confirm receipt attached to the JV-135 form that showed that the form was received by the BIA.

In the six-month status review report, the Department indicated that the BIA had sent a response letter and had stated that the family had provided insufficient information substantiating any federally recognized tribe. The Department noted that the family had provided no further information. The Department noted that P. did not want to discuss the tribe due to embarrassment and prejudice. The Department attached the response to the ICWA notice, wherein the BIA indicated that the family had provided insufficient information substantiating any federally recognized tribe and stated that the family must provide a family history back to the year 1900 to help in establishing a biological link.

At the six-month review hearing, the trial court determined that adequate ICWA notice had been given and that ICWA did not apply.

B. Analysis

First, respondent argues that no duty of inquiry or notice was required because Father and Mother both stated that they had no Indian ancestry. [T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the court and the county welfare department have an affirmative duty to inquire whether a dependent child is or may be an Indian child. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) As such, we do not find that Fathers indication on the JV-130 form was determinative in this case as he advised the Department orally that he might have Indian ancestry. Although Father should have properly filled out the JV-130 form, the Department considered that there may be ancestry and served the notice. We therefore will only address whether such notice was sufficient and whether the Department and juvenile court had a duty to find out additional information.

Where a juvenile court knows or has reason to know that an Indian child is involved in a section 300 proceeding, statutorily prescribed notice must be given to all tribes of which the child may be a member or eligible for membership. (25 U.S.C. 1912(a); 224.2, subd. (a)(3).) At the time that notice was required in this case, the notice was required to be provided on form JV-135. (Former Rule 5.664(f).)^[5] Notice must be sent for every hearing whenever there is reason to believe that the child may be an Indian child, until there is a determination that the ICWA does not apply. ( 224.2, subd. (b).) The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.)

It is now widely accepted that in order [t]o satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [the Department] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [the Department] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minors status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to BIA. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; see also In re Karla C. (2003) 113 Cal.App.4th 166, 175-176, 178.)

The notice required by ICWA must contain enough information to provide meaningful notice. (In re Karla C., supra, 113 Cal.App.4th at p. 175.) The federal regulations, adopted by California courts, require the ICWA notice to include, if known, (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the childs parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. (Karla C., at p. 175.; see also In re Louis S. (2004) 117 Cal.App.4th 622, 630.)

When the notice contains insufficient information, it is effectively meaningless. (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Because the failure to give proper notice forecloses participation by interested Indian tribes, ICWA notice requirements are strictly construed, and strict compliance is required. (In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475.)

Initially, Father makes a brief mention that the return receipts were not included in the record. The only receipts included were the Track and Confirm receipt of delivery by the United States Postal Service. However, we need not determine if this was sufficient in place of the signed return receipts, as the failure to file the return receipts with the court can be found harmless if there is other evidence indicating that the tribe actually received the notice, such as a response to the notice from the tribe. (See In re J.T. (2007) 154 Cal.App.4th 986, 994.) Here, the BIA did respond to the notice, and that response was included in the record.

Further, we find on this record that the notice sent by the Department substantially complied with ICWA and that any deficiencies in the notice were not prejudicial. Although the notice stated that P. was the maternal, rather than paternal, grandmother, the spelling of her name was correct. Furthermore, Mother and Father both possessed the same last name. Presumably, the BIA would conduct any type of search using the names of the parties involved; the fact the lineage was on the maternal or paternal side of the dependents family certainly would not impede the possibility of checking on heritage.

Further, the Department clearly attempted to obtain more information to give to the BIA, but paternal grandmother refused to discuss the issue. P. refused to give any other information due to embarrassment and prejudice. There is no indication in the record that any other family member was available to give any further information. If P. did not want to disclose any information, the Department could not force her to do so. Based on the totality of circumstances, the juvenile court had no duty to make further or additional inquiries in the absence of any credible evidence supporting a reasonable inference the children might have Indian heritage when P. refused to give out any further information. (See In re Aaliyah G. (2003) 109 Cal.App.4th 939, 942.) Father has failed to show what further inquiry would have disclosed, and given that he denied that he had any Indian heritage, there is nothing to support that further inquiry would have established a connection to any tribe.

The Department sent notice to the BIA with all the information it had been able to ascertain. The BIA was unable to find that there was any Indian heritage based on the given information. The Department was unable to obtain any other information. The juvenile court therefore could properly conclude that proper ICWA notice was given and that ICWA did not apply.

VI

DENIAL OF REQUEST FOR CONTINUANCE OF

THE SECTION 366.26 HEARING

Father contends that the juvenile court erred by denying his request for a continuance of the section 366.26 hearing.

A. Additional Factual Background

Father made two appearances in court: one at the jurisdictional hearing on April 6, 2006 and one at the six-month review hearing held on November 29, 2006. Father next appeared at the section 366.26 hearing. At that hearing, his counsel requested a continuance. Counsel argued that Father had not made an appearance since November 2006, and this was the first opportunity that counsel had to discuss the matter with him. Counsel indicated that Father had completed some services, but he did not bring the documentation to court. Further, counsel indicated that she had only recently been appointed to represent Father. The Department opposed the continuance because Father had not appeared in court for almost two years, and no good cause had been shown. Further, Father had not participated in visitation with J.Jr. and J. The fact that Father had new counsel was not good cause.

The juvenile court ruled, The Court does note that the father has been represented by counsel through the entire proceedings, has not attended the court proceedings for a year and a half, and the fact that he shows up on todays date requesting a continuance to gather information, in the eyes of the Court does not merit granting a continuance at this time. [] And the need for permanency in the childrens lives speaks to carry on with the 26 hearing today. So at this point the motion to continue will be denied.

B. Analysis

Continuances are governed by section 352, which provides in part: Upon request of counsel of the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the court shall give substantial weight to a minors need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. . . . [] In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.

Section 352 has been interpreted to be an express discouragement of continuances. (In re Emily L. (1989) 212 Cal.App.3d 734, 743.) Further, in the juvenile court system, delay does not serve the childs interests. (In re Sean E. (1992) 3 Cal.App.4th 1594, 1597.) The juvenile court has discretion to consider a motion for continuance before commencement of the selection and implementation hearing. (In re Michael R. (1992) 5 Cal.App.4th 687, 694.)

A juvenile courts determination of a motion for continuance will not be overturned on appeal absent an abuse of discretion. (In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.) Discretion is abused when a decision is arbitrary, capricious, or patently absurd and results in a manifest miscarriage of justice. (See, e.g., People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Franco (1994) 24 Cal.App.4th 1528, 1542-1543.)

Initially, Father never filed a written request for a continuance as required by section 352. Oral continuances made at the section 366.26 hearing are not favored. (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) The juvenile court could have refused the request on this basis alone.

Further, Father stated in the lower court that the only reasons for the continuance were that he had just been appointed new counsel and because he had completed some programs but had not brought the documentation to court. This does not support good cause. Father had been appointed new counsel at the hearing conducted on February 21, 2008, at which he failed to appear. Had he been present, he could have discussed the case with counsel rather than waiting until the section 366.26 hearing.

Moreover, Father never stated to the juvenile court what programs he had completed. Even if he had completed such programs and could provide proof to the court, he still failed to visit with the children throughout the dependency proceeding, he had a substance abuse problem, he was unemployed, and he took little or no interest in the instant proceedings.

Based on the foregoing, a continuance was not in the best interests of J. and J.Jr. Hence, the trial court did not abuse its discretion by denying Fathers request for a continuance of the section 366.26 hearing.

VII

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

KING

J.

MILLER

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Minors counsel agrees with the juvenile courts placement.

^[3] Father joined in Mothers arguments that benefit him, and Mother joined in all of Fathers arguments that benefit her.

^[4] Father did not join in the section 388 petition below, so we will not consider this claim as to him.

^[5] Effective January 1, 2008, form JV-135 was replaced by form ICWA-030 (Notice of Child Custody Proceeding for Indian Child). (See rule 5.481, subd. (b)(1).)